FEDERAL COURT OF AUSTRALIA

FPL17 v Minister for Home Affairs [2018] FCA 1766

ORDERS

THE COURT ORDERS THAT:

1.    Leave be granted to file an amended notice of appeal dated 14 November 2018.

2.    The appeal be allowed.

3.    Orders 3 and 4 of the orders made by his Honour Judge Street on 23 May 2018 be set aside and in lieu thereof the following declarations be made:

THE COURT DECLARES THAT:

1.    The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 of 23 January 2002 is invalid.

2.    The applicant is not an “unauthorised maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

3.    The applicant has not been notified pursuant to s 66 of the Migration Act 1958 (Cth) of the decision of a delegate of the Minister for Immigration and Border Protection dated 21 April 2017.

THE COURT ORDERS THAT:

4.    There issue a writ of certiorari quashing the decision of the Second Respondent made on 11 December 2017.

5.    The First Respondent pay the Appellant’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

STEWARD J:

Introduction

1    This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the second respondent (the “Authority”). The decision of the Authority under review was purportedly made under Part 7AA of the Migration Act 1958 (Cth) (the “Act”) on 11 December 2017 and affirmed a decision of the first respondent (the “Minister”), by his delegate, not to grant the appellant a Safe Haven Enterprise visa.

2    The appellant is a citizen of Bangladesh, who travelled to Australia by boat. Relevantly, the parties agree that on 5 February 2013, the boat was intercepted in an area of waters within the Territory of Ashmore and Cartier Islands, being the area of water the subject of the Full Court of this Court’s decision in DBB16 v Minister for Immigration and Border Protection [2018] FCAFC 178. On 6 August 2018, in DBB16, the Full Court declared that, the purported appointment of the port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN 3 on 23 January 2002 (the “Purported Appointment”) is invalid.

3    For the reasons that follow, the invalidity of the Purported Appointment means that the Authority did not have the power to review the decision of the Minister not to grant the appellant a Safe Haven Enterprise visa.

The Grounds of Appeal

4    The appellant relied on DBB16 to submit that declaratory relief should be granted in the same terms as that decision. For that purpose, at the hearing before me, the appellant sought leave to rely upon an amended notice of appeal. The Minister did not oppose that application and leave was granted. The amended grounds of appeal were in the following terms:

1.    The purported appointment of a port as a proclaimed port, an area of waters within the Territory of Ashmore and Cartier Islands, by notice published in the Commonwealth Gazette No GN on 23 January 2002 is invalid.

2.    The applicant is not an “unauthorized maritime arrival” within the meaning of s 5AA of the Migration Act 1958 (Cth).

3.    The applicant has not been notified pursuant to s 66 of the Migration Act 1958 of the decision of a delegate of the Minister for Immigration and Border Protection dated 21 April 2017.

These grounds of appeal were, unsurprisingly, not relied upon before the primary judge, who heard and decided the application before the decision in DBB16. I should add that the timing of the hearing of this appeal was fixed by the Court in the ordinary way. It was not the product of any application for expedition.

The Legislative Framework

5    Part 7AA of the Act confers jurisdiction on the Authority to review certain decisions made under the Act. Section 473BA of the Act outlines Part 7AA as follows:

This Part provides a limited form of review of certain decisions (fast track decisions) to refuse protection visas to some applicants, including unauthorised maritime arrivals who entered Australia on or after 13 August 2012, but before 1 January 2014, and who have not been taken to a regional processing country. These applicants are known as fast track review applicants and decisions to refuse to grant them protection visas are known as fast track reviewable decisions.

…

Fast track reviewable decisions must be referred by the Minister to the Immigration Assessment Authority as soon as reasonably practicable after a decision is made.

…

Decisions to refuse to grant protection visas to fast track applicants are generally not otherwise reviewable under this Act, although some decisions are reviewable by the Administrative Appeals Tribunal.

…

6    In practical terms, under Part 7AA, all fast track reviewable decisions are referred to the Authority for review: ss 473DB(1) and 473CA. In order for the appellant to be a “fast track applicant”, he had to be, amongst other things, an “unauthorised maritime arrival” as that term is defined by s 5AA(1) of the Act. This, in turn, required the appellant to have “entered Australia by sea” at an “excised offshore place”. Section 5AA(2) provides that a person enters Australia “by sea” if the person entered the “migration zone” except by an aircraft that landed in that zone. The term “migration zone” is defined in s 5 of the Act as follows:

migration zone means the area consisting of the States, the Territories, Australian resource installations and Australian sea installations and, to avoid doubt, includes:

 (a)    land that is part of a State or Territory at mean low water; and

 (b)    sea within the limits of both a State or a Territory and a port; and

(c)    piers, or similar structures, any part of which is connected to such land or to ground under such sea;

but does not include sea within the limits of a State or Territory but not in a port.

7    Pursuant to the definition of “migration zone” in s 5, an area of sea within the Territory of Ashmore and Cartier Islands would not be part of the migration zone unless the area were also a “port”. “Port” is relevantly defined by s 5 as a “proclaimed port”. The term is then used in a non-prescribed sense in s 5(5), which confers on the Minister the power to proclaim ports. Section 5(5) provides:

(5)    The Minister may, by notice published in the Gazette:

(a)    appoint ports in an external Territory to which this Act extends as proclaimed ports for the purposes of this Act and fix the limits of those ports; …

8    It follows that in order for the appellant to be an unauthorised maritime arrival, the Purported Appointment needed to have been legally effective.

The Purported Appointment of a Port

9    In DBB16, the appellant (DBB16) submitted that the instrument of the Purported Appointment was invalid on three grounds. DBB16 was successful on the ground that the Minister’s power to appoint a port in s 5(5) was limited to physical locations or facilities which could, as a matter of ordinary English, actually be said to be ports.

10    DBB16 arrived in Australian waters on 7 November 2012 and was taken to the Western Lagoon of Ashmore Reef before being taken to Darwin. The Authority reviewed a decision of the Minister’s delegate based on an assumption that the Western Lagoon was a proclaimed port by virtue of the Purported Appointment and that, accordingly, DBB16 was a “fast track applicant” to whom Part 7AA of the Act applied. The Western Lagoon was a shallow lagoon on an uninhabited coral and sand reef in the Indian Ocean and, in DBB16’s submission, was not, as a matter of ordinary English, a port capable of being appointed as a proclaimed port under s 5(5).

11    The non-prescribed meaning of “port” is only used in s 5(5) of the Act; all other references in the Act to “port” are to the term defined by s 5 as a proclaimed port. The task of the Full Court was to determine the meaning of that term in the non-prescribed sense. Following an examination of the statutory context, judicial consideration of the term and its ordinary meaning, the Full Court concluded that, whilst the word “port” may have a variety of meanings, in the statutory context here a fundamental feature of a port is that it is a place where a non-citizen holding a visa can be immigration cleared. There is no infrastructure at the Western Lagoon which would permit immigration clearance to occur and, due to environmental regulation of the Ashmore Reef, a person could not lawfully leave the purported port. It followed that the Western Lagoon area of Ashmore Reef could not be a “port” for the purposes of s 5(5) of the Act. The Court held that the Minister had no power to appoint the Western Lagoon to be a proclaimed port and the instrument that purported to do so was invalid.

Disposition

12    The Minister submitted that DBB16 was wrongly decided and that the Minister was considering making an application for special leave to appeal to the High Court. However, the Minister, very properly, conceded that I was bound by DBB16 and did not submit that the law or facts of the present case could validly distinguish it from the Full Court authority. In a sense, the Minister was therefore resigned to the fact that the appeal must be allowed.

13    The Minister’s disagreement with the reasons in DBB16 does not provide any basis for declining the appellant the relief sought. There is some tension in the relevant authorities as to whether the correctness of DBB16 can be challenged in a proceeding before a single judge of this Court exercising appellate jurisdiction. There is authority for the proposition that a single judge exercising appellate jurisdiction should not depart from a decision of the Full Court, even where the judge considers that decision to be wrong: SZNPT v Minister for Immigration and Citizenship [2009] FCA 1408 at [29]; SZGME v Minister for Immigration and Citizenship (2008) 168 FCR 487 at [43]. At the very least, a single judge sitting in the appellate jurisdiction would need to be convinced that DBB16 was plainly wrong before departing from it: EUQ17 v Minister for Home Affairs [2018] FCA 1645 at [19]; cf Australian Securities Commission v Marlborough Gold Mines Limited (1993) 177 CLR 485. The Minister did not submit, and I do not consider, that the decision of DBB16 was plainly wrong. In these circumstances, I am bound by DBB16.

14    Equally, the potential special leave application does not have a bearing on this case. The appellant is entitled to rely upon the binding decision of DBB16 unless and until that decision is overturned. As the law currently stands, the Purported Appointment is invalid. The consequence of the invalidity is that the appellant did not meet the criteria of a “fast track applicant” and there had been no fast track reviewable decision to be referred to the Authority. A review of the decision of the Minister’s delegate to reject his visa application should have instead proceeded under Part 7 of the Act as a full merits review. The Authority had no jurisdiction to review the delegate’s decision.

15    For these reasons, on 14 November 2018, I ordered that the appeal be allowed and made the declarations sought by the appellant.

Associate:

Dated:    11 February 2019